P L D 1991 Federal Shariat Court 139 (PLP)

(1) A witness must be a person who is ‑ (a) Baligh (adult). (b) `Aqil (sane) (c) Baseer having eye‑sight); (d) Natiq having the faculty of speech); (e) Adil (just); and (f) Muslim.

9. In cases where a non‑Muslim's evidence is according to Shari'ah, admissible, condition (f) will not apply.

10. Evidence of a minor shall, subject to the following conditions, be admissible in cases relating to fighting and altercation:‑ (a) If it relates to a minor; (b) If it relates to injury and murder, and not to property matters; (c) If the minor witness is a Muslim, sensible and intelligent enough and not generally known as a liar.

11. In case of Mashhud `aelaih (the person against whom evidence is given) being a non.‑Muslim the condition of a minor witness to be a Muslim shall not apply: (d) If evidence is given by more than one minor witnesses; (e) If the witness or his parents have no enmity with Mash‑hud `aelaih or with his parents;

12. For proof of lineage, death, Nikah, Dukhul, (penetration) jurisdiction of a Qazi and actuality of a trust, and such matters as may be proved by Shahadat‑e‑Sima'i the condition for a witness to have eye‑sight shall not apply.

13. Sima'i‑e‑Shahadat (hearsay evidence) means evidence that is given on the basis of Tawatur or information of two `Aqil, Baligh, `Adil, male persons or one male and two female persons being `Aqil, Baligh and `Adil.

14. Evidence by a dumb person shall be admissible, except in cases relating to "Hudood", only when it is written by the witness himself in the presence of the Presiding Officer of the Court.

15. Evidence by a non‑Muslim against a Muslim shall be admissible only when it relates to a Wasiyyah made during the course of a journey when no Muslim Shahid is available.

16. If the Mashhud `Alaih is a non‑Muslim the witness may be a non‑Muslim. (For full discussion see my book `Islami Qanun‑e‑Shahadat', 1988 printed Qanun‑i‑Kutub Khana, Lahore, pp 32 to 54 and 99 to 160).

17. As regards quantum of evidence (Nisab‑e‑Shahadat) the offence of Zina liable to Hadd shall stand proved if four Muslim, `Aqil and Baligh (adult), male witnesses, about whom the Court, having regard to the provisions of Tazkiah al‑Shahud, contained in Ordinance VII of 1979 is satisfied that they are "Adil" persons, give evidence as eye‑witnesses of the act of penetration necessary for the offence of Zina liable to Hadd: Provided that if the accused is a non‑Muslim the eye‑witnesses may be non- Muslims who are credible according to their own religion or faith. (Aslo see Rashida Patel's case, (PLD 1989 FSC 95).

18. The offence of Saraqah (Theft) liable to Hadd and the offence of Harrabah liable to Hadd shall stand proved if two Muslim, `Aqil Baligh (adult) male witnesses, about whom the Court, having regard to the provisions of Tazkiah al‑Shahud, contained in Ordinance VI of 1979 is satisfied that they are `Adil persons, give evidence, as eye‑witnesses, of the offence of Saraqah or Harabah: Provided that if the accused is a non‑Muslim the eye‑witnesses may be non‑Muslims who are credible according to their own religion or faith.

19. In case of Saraqah (theft) liable to Hadd, the statement of Masrooq Minhu the person whose property has been stolen) or of any person authorised by him shall be recorded before the statements of the eye‑witnesses.

20. The offence of Qazf false accusation of Zina) and the offence of Shurb‑e‑Khamr drinking wine liable to Hadd shall stand proved by the evidence of two Muslim, `Aqil, Baligh, male witnesses about whom the Court having regard to the provisions of Tazkiyah al‑Shuhud contained in Ordinance VII of 1979 is satisfied that they are Adil persons: provided that if the accused is a non‑Muslim, the witnesses may be non‑Muslims who are credible according to their own religion or faith. In case of the offence of Qazf liable to Hadd, the statement of the complainant or any person authorised by him shall be recorded before the statements of the witnesses. 21. .An offence liable to Oisas shall stand proved by the evidence of two Muslim, `Aqil, Baligh, male eye‑witnesses, about whom the Court, subject to the provisions of Tazkiyah al‑Shuhud contained in the law, is satisfied that they are `Adil persons: Provided that if accused is a non‑Muslim the eye‑witnesses may be non‑Muslim who are credible according to their own religion or faith.

22. Except for the offences liable to Hadd and Oisas all other matters, including fiscal matters, shall be proved by the evidence of two `Aqil, Baligh and `Adil male witnesses and in the absence of two‑such male witnesses by the evidence of one such male and two such female witneses. If the defendant or accused is a non‑Muslim the witnesses may be non‑Muslims who are credible according to the faith or religion they profess.

23. Evidence of a single `Aqil, Baligh, `Adil, Muslim female witness shall be admissible in cases relating to birth, virginity and such other matters concerning women as are not usually seen by men: Provided that if the defendant is a non- Muslim the female witness may be non‑Muslim who is credible according to the faith or religion she professes. The condition of a female witness does not mean exclusion of the evidence of a male witness.

24. Evidence of a single `Aqil, Baligh, `Adil, male witness shall be admissible in the following cases namely:‑ (1) to determine the amount of compensation for the damage caused:, (2) to translate the statement or the evidence of a party or a witness in is Court of Law; (3) to decide, when there is a difference of opinion regarding Bai‑e-Saleem kind of commercial transaction), whether the article sold is useable or not (4) to determine, when the period specified for the payment of amount of a decree has expired, whether the debtor under custody has become insolvent: (5) to decide whether an article, which is a subject of dispute between the seller and the buyer, is defective or not; and (6) to determine the amount of compensation for the injuries caused.

25. In cases relating to property and the rights relating thereto, where a defendant, after having been served with summons, fails to appear before the Court, the plaintiff, may produce one witness and may take oath which will be deemed sufficient evidence for the proof of his claim. Where he plaintiff fails to produce a witness but produces documentary evidence the Court may, if it is of the opinion that the plaintiff's claim appears to be probably true, decide the matter by giving an oath to the plaintiff (for fuller discussion on Quantum of witnesses see my book Islami Oanoon‑e‑Shahadat, 1988 printed at Qanuni Kutub Khana, Lahore, pp 55 to 98).

27. Now coming to Article 3 of the of the Qanun‑e‑Shahadat Order, 1984, relating to competency of witness, it reads as under:‑ "

3. Who may testify.‑

‑All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving answers to those questions rationally by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind; Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence: Provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways: Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah for a witness, and, where such witness is not forthcoming, the Court may take the evidence of a witness who may be available. Explanation.‑‑A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them."

27. The above Article lays down two requirements of competency of a witness:‑ (i) to have capacity to understand and ability to answer the questions put to him in a rational manner: (ii) to have requisite qualifications of a witness as prescribed by the Injunctions of Islam, laid down in the Holy Our'an and the Sunnah of the Holy Prophet.

28. This section also provides that where a qualified witness is not forthcoming the Court may take evidence of a witness who may be available. However, the above section contains three provisos, namely; (i) A person shall not be a competent witness if he has been convicted by a Court for perjury or giving false evidence. (ii) This disqualification as to the competency of the witness will not be applicable to a person about whom the Court is satisfied that he has repented and mended his ways. (iii) It has been left to the Court to determine the competency of a witness in accordance with the qualifications prescribed by the Injunctions of Islam. At the end of the section an explanation has been added that if a witness is a lunatic he may testify provided he is not prevented to answer the questions put to him because of his lunancy. It, in fact, relates to period during lucid intervals.

29. The opening clause of the section mentions some of the rules as to the competency of a witness. A person is capable of bearing testimony who possesses the capacity to see a fact which is capable of being seen, of hearing a fact which is capable of being heard and of perceiving a fact which is capable of perception.

30. The first and second proviso are based on the verses 4 and 5 of Surah Al nur, which read as under:‑ (And those who launch a charge against chaste women, and produce not four witnesses, (to support their allegation), ‑

Flog them with eighty stripes, and reject their evidence ever after: for such men are wicked transgressors:‑) (Unless they repent thereafter and mend (their conduct): for Allah is Oft -Forgiving, Most Merciful).

31. The third proviso specifically provides that a person should possess all the qualifications of a witness as laid down in the Holy Our'an and Sunnah. This section itself does not prescribe the qualifications of a witness but makes it a pre requisite that he should possess the qualifications of a witness as laid down in the Holy Qur'an and Sunnah.

32. At the end of the third proviso it has been provided that "where such witness is not forthcoming the Court may take evidence of a witness who may be available." This clause seems apparently to be a conflict with the accepted rules of a competent witness in Shariah; but it has been provided to meet a situation where a witness possessing the requisite qualifications or that the witness (es) in requisite number, is not available, so that the rights of the people may not be lost and the offenders should not go unpunished. The clause seems to be based on the principle of necessity which is recognized by the Shari'ah.

33. For the discussion aforesaid on section 3 it cannot be said that the provisions of law as contained in Article 3 of the Qanun‑e‑Shahadat, as to competency of witness, are repugnant to the Injunctions of Islam. The Council of Islamic Ideology has also expressed its opinion on the above Article 3 of the Qanun‑e‑Shahadat as not repugnant to the Injunctions of Islam. (vide Annual Report for 1988‑89). (ARTICLE 16 OF QANUN‑E‑SHAHADAT ORDER, 1984).

34. Article 16 of the Qanun‑e‑Shahadat Order, 1984, as challenged, reads as under: "Article

16. Accomplice.‑‑An accomplice shall be competent witness against an accused person, except in the case of an offence punishable with hadd, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." This Article acknowledges the comnentency of an accomplice in all matters other than Hudood.

35. The provisions of evidence relating to an accomplice were contained previously in section 133 of the Evidence Act, 1872, since repealed, (hereinafter referred to as "the repealed Act"). These very provisions have now been reenacted in Article 16 of the Qanun‑e‑Shahadat with the addition of an exception that in case of an offence punishable with Hadd, an accomplice shall not be a competent witness i.e. for awarding Hadd punishment as provided in Hudood I Laws, namely, the Offences Against Property (Enfocement of Hudood) Ordinance (VI of 1979), the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) the Offence of Qazf (Enforcement of Hadd).Ordinance (VIII of 1979), and the Prohibition (Enforcement of Hadd) Order (IV of 1979), an accomplice shall not be a competent witness. In result, the evidence of an accomplice has, thus, been excluded for the offences punishable with Hadd. This ; exception may equally apply to any other future law making an offence punishable with Hadd, as ordained by Allah or His apostle.

36. An accomplice in the commission of an offence, is a co‑accused, an associate or partner who has such a relation to the criminal act that he can be jointly implicated with the other accused. The term `accomplice' implies that the offenders are more than one who are oarticines criminis in respect of commission of the crime charged as principals or associates.

37. The present Article 16 must be read with illustration (b) to Article 129 of the Qanun‑e‑Shahadat as both co‑relate to each other. Now, reading Article 16 and illustration (b) to Article 129 together, it would appear that the Courts, in the Sub‑continent, while construing section 133 of the repealed Act, have held that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corroborated.

38. It may, therefore, be said that as provided in section 133 of the repealed Act and now Article 16 of the Qanun‑e‑Shahadat so provides (except in case of 1 an offence punishable with Hadd) that sole testimony of an accomplice, without independent corroboration will not render the conviction illegal, if the rule of Islamic law of evidence is that the testimony of an accomplice alone is not sufficient to base conviction of a co‑accused, unless corroborated by other piece of evidence, the provisions of Article 16, as framed, will come into conflict with the Injunctions of Islam. It may, however, be added that in view of the provisions of illustration(b) of Article 129, it has been almost the rule of law that without corroboration, the evidence of an accomplice is not to be acted upon.

39. Islamic law lays down certain qualifications for a competent witness to 1 tender evidence in a Court of law. An accomplice (or approver) does not come up to the required standard of competency, because, firstly he is a criminal and, secondly, he on his own confession of the commission of the offence becomes undoubtedly a Fasiq Islam searches out the inner conscience of everyone because one has to act as in the presence of God to whom all things, acts and motives are known.

40. In Islam a witness must be `Adil `Adalah' (justness) is a condition precedent. The evidence is to be given for the Almighty Allah. A detailed illustration of a competent witness is to be found in the various verses of the Holy Qur'an, quoted below, with translation and comments by Abdullah Yousaf Ali:‑‑ (O ye who believe! stand out firmly for justice, as witness to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: For Allah can best protect both. Follow not the lusts (Of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well acquainted with all that ye do.) Justice is God's attribute, and to stand firm justice is to be a witness to God, even if it is determental to our own interests (as we conceive them) or the interests of those who are near and dear to us.

41. But, Islamic justice is something higher than the formal justice of Roman Law or any other human Law. It is even more penetrative than the subtler justice in the speculations of the Greek philosophers. It searches out the innermost motives, because we are to act as in the presence of God, to whom nothing remains secret.

42. Sonic people may be inclined to favour the rich because they expect something from them. Some people may be inclined to favour the poor because they are generally helpless. Partiality in either case is wrong: Be just, without fear or favour. Both the rich and the poor are under God's protection as far as their legitimate interests are concerned, but they cannot expect to be favoured at the expense of others. And He can protect their interests far better than any man". (And take for witness two persons from among you endued with justice, and establish the evidence) "Everything should be done fairly and squarely and all interests should be safeguarded. Publicity and the establishment of proper evidence ensure that no one will act unjustly or selfishly. All should remember that these are matters of serious import, affecting our most intimate lives, and therefore our position in the spiritual kindgom in the Hereafter." (O'ye who believe! if a wicked person comes to you with any news ascertain the truth). All title‑tales or reports‑especially if emanating from persons, you do not know are to be tested, and the truth ascertained. If they were believed and passed on, much harm may be done of which you may have caused afterward to repent heartily. Scandal or slander of all kinds is here condemned. That about women is specially denounced.

43. As I understand, the word "Nabs" in the above verse if taken in its ordinary meaning as "tidings" or information', the Holy Qur'an directs that if it is received from a Fasiq let it be checked from other sources, lest the information X may be untrue. Thus, it is all the more required in the matter of believing an accomplice, who has turned out to be Fasiq on account of the commission of the offence, while giving evidence which is on a higher pedestal than a. mere tiding (Khabr,) or information, as it affects the rights and liabilities of another person which are to be decided on the basis of his evidence. Thus, his evidence can only be relied on if it finds support from other corroborative evidence. So, this rule of evidence finds direct support from the verse of Surah quoted above. According to me it is a direct Nass, a textual manifestation against the conviction of an accused on the uncorroborated evidence of an accomplice. (We sent aforetimes our apostles with clear signs. And sent down with them the Book and the Balance (Of Right and Wrong), that men may stand forth in justice). "Three things are mentioned as gifts of God. In concrete terms they are the Book, the Balance, and Iron, which stand as emblems of three things which hold society together, viz., Revelation, which commands Good and forbids Evil; Justice, which gives to each person his due; and the strong arm of the Law which maintains sanctions for evel‑doers:"

44. It shows that to do justice, Allah gave the "Book" and Balance to the Prophets. The Book is actually a symbol of Laws and the balance is a symbol of justice. The word is plural which shows that all Y the apostles' duty was to do justice among the people and they were not supposed to charge any fee for doing justice among the people. The Quarn in the word of Prophet says: "I do not claim any charge/fee."

45. The above verse of the Holy Qur'an gets further support from the following verses: (Allah doth command you to render back your Trusts to those to whom they are due, and when ye judge between man and man, they ye judge with justice). In this verse the word as I understand it, has been used in general terms. It also includes `evidence' as it has been made obligatory on a person who has received evidence in respect of a matter to render the said evidence. They should not refuse whenever they are called upon to give the evidence for the sake of Allah, and not for any wordly benefit. The word is common in the verse and in the law relating to evidence.

46. The word has been used at many places in the Holy Qur'an in the same sense. It shows that the judgment should be based on justice. (We have sent down to thee the Book in truth, that thou mightest judge between men, as guided by Allah: so be not (used) .as an advocate by those who betray their trust).

47. The Commentators explain this passage with reference to the case of Tai'ma Ibn Ubairaq, who was nominally a Muslim but really a Hypocrite, and given to all sorts of wicked deeds. He was suspected of having stolen a set of armour, and when the trial was hot, he planted the stolen property into the house of a Jew, where it was found. The Jew denied the charge and accused Ta'ima, but the sympathies of the Muslim community were with Ta'ima on account of his nominal profession of Islam. The ca. se was brought to the Apostle, who acquitted the Jew according to the strict principle of justice as "guided by Allah". Attempts were made to prejudice him and deceive him into using his authority to favour Tai'ma.

48. The word is of great importance in the Holy Qur'an as it throws light upon all prevailing concept of justice in Islam which is the foundation of peace and prosperity. This word has been used in the Holy Qur'an at about 287 (two hundred and eighty seven) times, in its several derivative forms out of which a few verses are given below:‑ (The truth (comes) from Allah alone; so be not of those who doubt). The truth does not necessarily come from priests, or‑ from the superstitions of whole peoples. It comes from Allah and where there is a direct revelation, there is no room for doubt. (Say: Shall I seek for judge other than Allah? When He it is who hath sent unto you the Book, explained in detail, they know full well, to whom We have given the Book, that it hath been sent down from thy Lord in truth. Never be then of those who doubt).

49. The righteous man seeks no other standard of judgment but Allah's Will. How can he when Allah in His Grace has explained His Will in the Qur'an with details which men of every capacity can understand? The humblest can learn lesson on right conduct in daily life, and the most advanced can find the highest wisdom in the spiritual teaching, enriched as it is with all kinds of beautiful illustrations from nature and the story of man. (The Truth hath indeed come to thee from thy Lord: So be in no wise of those in doubt). 50. "Allah's Truth is all one, and even in different forms men sincere in Religion recognize the oneness. So sincere Jews like `Abdullah ibn Salam, and sincere Christians like Waraqa or the Nestorian monk Buhaira, were ready to recognize the mission of Muhammad Mustafa (p.b.u.h.). "The Book" in this connection is Revelation generally, also referring to pre‑Islamic revelation".

51. The above verses of the Holy Qur'an clearly show that (I) is "The Truth" devoid of all kinds of doubts, or falsehood. (And cover not Truth with falsehood, nor conceal the Truth when ye know (what it is)." There is a commandment not to confuse truth with falsehood. This amounts to concealment of truth.

52. The word is derived from the word (?) and the same is fully explained in the following verse of the Holy Our'an: (If we had made it an angel, We should have sent him as a man, and We should certainly have caused them confusion in a matter which is already to them obscure and confused). 53. "Supposing an angel should appear to their grosser senses, he could do it only in human form. In that case their present confused notions about spiritual life would be still more confounded. They would say "We wanted to see an angel, and we have only seen a man" Both the above verses make it clear that is always free from "confusion" and "doubt". (Contend not on behalf' of such as betray their own souls. For Allah loveth not one given to perifidy and crime). 54 Our souls are a ort of trust with us. We have to guard them against all temptations. Those who surrender to crime or evil betray that trust. We arc warned against being deceived into taking their part, induced either by plausible appearances, or such incentives to partiality as that they belong to our own people or that some link connects them with us whereas when we are out to do justice, we must not allow any irrelevant considerations to sway us.

55. Verses 105 and 107 of Surah Al‑Nisa S. IV contain the word Khawwan. Both these verses make it clear that Allah does not like `Khain' (who betrays His trust). Thus, a witness should not be a person who betrays the trust of Allah reposed in human beings. The above verse (IV‑107) also shows that our souls are a sort of trust with us and those who surrender to crime or evil betray their trust and become Khain and are sinners (Athema) and do not have the characteristics of those who are loved by Allah. (But if anyone earns a fault or a sin and throws it on to one that is innocent, he carries (on himself) (Both) a falsehood and a flagrant sin).

56. The above verse of the Holy Our'an is about those persons who can be called the `approvers'. Such persons are criminals and sinners themselves and they throw their fault or sin on those who may not be offenders in those crimes. About such persons Allah says that they carry falsehood and a flagrant sin. This is the reason that the evidence of the criminals and sinners who throw their fault and sin on others, is not considered to be a true evidence by itself. The study of the Holy Qur'an from verses 105 to 112, S.IV reveals a number of things about justice and the evidence.

57. Besides the above Injunctions of Islam as laid down in the Holy Qur'an, the following traditions of the Holy Prophet (p.b.u.h.) are also relevant:‑- (The Holy Phophet said, says Umar bin Shoaib, with reference to his father who with reference to his grand‑father the Holy Prophet (p.b.u.h.) said "The evidence of Khain (man and Kha'inah (woman) (who betray their Trust) Zani‑Zania and of enemy against brother and of those who live in the house (servant. family members etc.) is not admissible.)

58. The evidence of an accomplice as an approver may bear some revenge or enmity towards his other accused/partners. The Holy Prophet has said that the evidence of a person having enmity with his brother is not acceptable. The evidence of an accomplice as an approver may bear some revenge or enmity towards his other accused/partners. The Holy Prophet has said that the evidence of a person having enmity with his bother is not acceptable. (Mishkatul Masabih, vol.2 p.623 translation by Fazlul Karim).

59. There is also a tradition related from Hazrat Umar Ibn Abdul Aziz who is generally known in the Islamic history as fifth guided Khalifa. The tradition clearly supports the contention that the evidence of an accomplice is not acceptable in Islamic Law the writing of the fifth Caliph is just like a commentary of the saying of the Holy Prophet.

60. These are the words of the tradition:‑ (Umar Bin Abdul Aziz wrote that evidence of only a reliable person who must not be an accused is acceptable. It is for the reason that a tradition from the Holy Prophet has reached us that the Holy Prophet (p.b.u.h.) said that deposition of a treacherous man or woman is not valid nor of a man having enmity with his brother. The evidence of an innovator is also not acceptable.

61. Section 1705 of the Majallah Al‑Ahkam Al‑Adliya, Turkey, states "A witness must be a person endued with justice (credibility)".

62. The Council of Islamic Ideology, then headed by me, in its Draft Ordinance on Islamic Law of Evidence, 1982 has defined credible witness as under :‑ "Adilmeans a Muslim who is known for performing prescribed religious duties and abstains from major sins.

63. Now, with this background of the Qurahic commandments and sayings of the Holy Prophet (p.b.u.h.), reverting to Article 16 of the Oanun‑e‑Shahadat, petitioner in Shariat Petition No.2/K of 1991 submitted that the offence punishable with Qisas (Retaliation) be also excluded from the general rules laid down under Article

16. He urged that there is similarity between the Hadd and Qisas. Reference was made by him to an extract from page 63 of Islami Qawaneen Hudood, Qisas, Diyat and Ta'sirat (written by me) published by Qanun‑i‑Kutab Khana, Lahore 2nd Edition, which reads as under:‑ Roliance was also placed by Mr. Muhammadi on the following observation of Maulana Muhammad Taqi Usmani, J, in Federation of Pakistan v. Gul Hassan Khan P L D 1989 SC 633 appearing at pages 681‑682 of the Report which reads as under:‑

64. The submission of Mr. Muhammadi seeking for the exception in Article 16 of the Oanun‑e‑Shahadat in respect of the offence punishable with Qisas, like that of Hadd, is based on sound reasoning inasmuch as according to the of quoted tradition of the Holy Prophet (p.b.u.h.) the punishment of Oisas is also repulsed on account of doubt like that of Hadd.

65. It may be worthwhile to mention here that section 133 of the repealed Evidence Act, 1872 was challenged before this Court by the petitioner through Shariat‑Petition No.1/K of 1979 and Shariat Petition No.20/K of 1979 wherein, inter alia, section 133 of the Evidence Act was also challenged. The petitions were dismissed on the ground that the Evidence Act related to the procedure of Courts and was thus immune from the jurisdiction of this Court. On appeal before the Appellate Shariat Bench of the Supreme Court in Federation of Pakistan v. Gul Hassan Khan alongwith several other connected petitions reported in P L D 1989 SC 633. the question of section 133 of the Evidence Act being procedural or otherwise or its examination on the anvil of the Qur'an and Sunnah was not considered as the said Act had already been repealed and the new law, Qanun‑e- Shahadat Order, 1984 had come into force. The relevant observation of Maulana Muhammad Taqi Usmani, J. as quoted above, was made in the appeal before the Shariat Appellate Bench filed earlier by Mr. Muhammadi against the dismissal of the Petition No. l/K of 1979.

66. It may, however, be observed here that the provision of Article 16 (or for that matter section 133 of the repealed Act). does not relate to procedure but declares that a conviction merely because it is based on uncorroborated testimony of an accomplice is not illegal. It, in fact, imposes a liability on an accused of being convicted on certain piece of evidence in a certain situation which involves the question of conviction of an accused in a crime. It cannot, therefore, be said to be procedural in nature. In fact, this provision is invoked and works against the accused, and takes effect as a substantive provision of law.

67. I may also refer to Muhammad Alam v: State (S C M R 1983 Part 11, P.1127) wherein Maulana Muhammad Taqi Usmani, J. referring to section 133 of the repealed Act (Evidence Act 1872) observed as under:‑‑

68. The rule that an accomplice is a competent witness and the judgment based solely on his evidence is not illegal does not find place in the Muslim Law of Evidence. The reason is obvious. Islam lays great stress on the conditions of competence and standard of probity and rectitude of a witness both qualitatively and quantitatively. An accomplice who partakes commission of an offence becomes Fasiq and thus his testimony is not worthy of credence. It appears that the framer of the Qanun‑e‑Shahadat Order, 1984, though considered an accomplice as incompetent witness in an offence punishable with Hadd, but considered him as competent witness in other matters, perhaps, on the ground of necessity, as it may, some times be difficult to bring home the principal accused to guilt, without having recourse to the evidence of an accomplice.

69. It is also noticeable that the proposed Islami Oanun‑e‑Shahadat Ordinance, 1982, as drafted by the Council of Islamic Ideology (then headed by me) does not contain any such provision as to the admissibility or otherwise of the evidence of an accomplice.

70. Mr. Justice Khalil‑ur‑Rahman, Judge of the Lahore High Court in his book Principles and Digest of the Qanun‑e‑Shahadat, a commentary adapted from (late) Justice Monir's Principles and Digest of the Law of Evidence, Volume 1 page 154, while discussing Article 16 of the Qanun‑e‑Shahadat has stated that "the principle and proposition of law that a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice contained in Article 16 is not in accord with principles of Muslim Law of Evidence".

71. Fathi Bahnasi a modern Arab Scholar to his book Nazriyah al‑Ithbat fil Fiq al Islami on Islamic jurisprudence, published in 1962 page 84 writes that the evidence of an accused or a person, against whom a judgment has been passed, is not acceptable in Islamic Law. He cites Mulla Khusro to support his contention which reads as under:‑ (An incident having taken place among the prisoners in the prison and some of them offer themselves for giving evidence regarding the incident, their evidence shall not be accepted (against the accused) for the reason that they all are accused persons, as mentioned in Al‑Jam'al‑Kabir.

72. As would be clear that in Islamic Law of Evidence, `Adil is a condition for the admissibility of the evidence of a witness, but sometime the evidence of a Ghair Adil is also accepted in necessity. Allama Tarablasi in his book Win al‑Hukkam writes: (if the villagers gave evidence in favour of the right of a woman or another person and none of them is Adil the Qazi‑will decide the case on the basis of evidence of a large number of such witnesses (lacking `Ad'alah). He further writes: (if the majority of the residents in a locality are evil‑doers, the evidence of some of them will be accepted for and against the others so that their interests may not suffer and their properties and rights may not be destroyed) He continues: (if, in the opinion of a judge, an evil‑doer gives true evidence, he should accept his evidence and his evil‑doing in other matters will not harm it, because a person may be evil‑doer in one matter while he may not be evil‑doer in another matter." (Al‑Tarablasi, Alauddin Adul Hasan Ali Ibn Khalil; Win al Hukkam printed Oandahar, Afghanistan, pages 145, 146).

73. Another contemporary scholar Abdul Fattah Muhammad Abu Al‑Ainain writes, "the confession of co‑accused will be restricted to his own offence and will not be extended to anybody else even his co‑accused. Thus, if some persons jointly commit an offence and then one of them confesses the commission of the offence and gives evidence on his other co‑accused, his confession will only be restricted to him and will not be taken as evidence against his co‑accused:" Cairo, p.493).

74. This fact has been partly incorporated in illustration (b) of Article 129 of Qanoon‑e‑Shahadat 1984 wherein the Court has been authorised that under the circumstances of a particular case, it may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars.

75. It is pertinent to mention that non‑admissibility of the evidence of an accomplice is not restricted to an offence liable to Hadd but it is also extended to in offence liable to Qisas. Thus, in an offence, punishable with Ta'zir i.e. the offences other than punishable with Hadd and Qisas may be used as circumstantial evidence if it is corroborated by other independent evidence.

76. Section 16 of the Oanoon‑e‑Shahadat 1984 is, therefore, declared as repugnant to the Injunctions of Islam. An accomplice is not a competent witness in offences punishable with Qisas as well, besides Hadd. A conviction based on his uncorroborated testimony even in matters of Ta'zir will be illegal. III. TENDER OF PARDON TO ACCOMPLICE (SECTIONS 337. 338. 339 AND 339‑A OF THE Cr.P.C. (1898)

77. While considering sections 337, 338 and 339 of Cr.P.C. it may be stated that in the Pakistan Law of Evidence, Pakistan Criminal Procedure Code, we come across two terms: One is accomplice and the other is approver. Some time these terms appear to have been used interchangeably. The distinction, however, remains that an approver is always an accomplice whereas an accomplice is not necessarily an approver, as an accomplice or co‑accused becomes an approver after he has been tendered a pardon or granted concession on the condition that he will reveal the truth and will not hide anything in relation to the offence or offences which he and the other accused are alleged to have committed; Relevant sections 337, 338, 339 and 339‑A of Cr.P.C. are reproduced:‑ Section 337: "Tender of pardon to accomplice." (1) In the case of any offence triable exclusively by the High Court or Court of Session, or any offence punishable with the imprisonment which may extend to ten years, or any offence punishable under section 211 of the Pakistan Penal Code with imprisonment which may extend to seven years, or any offence under any of the following sections of the Pakistan Penal Code, namely, sections 216‑A, 369, 401, 435 and 477‑A, (the District Magistrate or Sub‑Divisional Magistrate) may, at any stage of the investigation or inquiry into, or the trial of the offence, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether, as principal or in the commission thereof: `Provided that no person shall be tendered pardon who is involved in an offence relating to hurt or Qatl without permission of the victim or, as the case may be of the heirs of the victim' (Amended by Presidential Ord: 1 of 1991). (2) Every person accepting a tender under this section shall be examined as a witness in the subsequent trial, if any. (2‑A) In every case where a person has accepted a tender of pardon and has been examined under subsection (2), the Magistrate before whom the proceedings are pending shall, if he is satisfied that there are reasonable grounds for believing that the accused is guilty of an offence, commit him for trial to the 6ourl of Session or High Court, as the case may be (3) Such person, unless he is already on bail, shall be detained in custody until the termination of the trial".

338. Power to grant or tender pardon. At any time before the judgment is passed, the High Court or the Court of Session trying the case may, with the view to obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such offence, tender, or order the District Magistrate to tender, a pardon on the same condition to such person. `Provided that no person shall be tendered pardon who is involved in an offence relating to hurt or Qatl without permission of the victim or as the case may be of the heirs of the victim.' (Amended by Presidential Ordinance No.1 of 1991).

339. Trial of person to whom pardon has been tendered. (1) Where a pardon has been tendered under section 337 or section 338, and the Public Prosecutor certifies that in his opinion any person who has accepted such tender has, either by wilfully concealing anything essential or by giving false evidence, not complied with the conditions on which the tender was made such person may be tried for the offence in respect of which the pardon was so tendered, or for any other offence of which he appears to have been guilty in connection with the same matter: Provided that such person shall not be tried jointly with any of the other accused and that he shall be entitled to plead at such trial that he has complied with the conditions upon which such tender was made; in which case it shall be for the prosecution to prove that such conditions have not been complied with. (2) The statement made by a person who has accepted a tender or pardon may be given in evidence against him at such trial. (3) No prosecution for the offence of giving false evidence in respect of such statement shall be entertained without the sanction of the High Court. 339‑A. Procedure in trial of person under section 339. (1) The Court trying under section 339 a person who has accepted a tender of pardon shall, before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of the pardon was made. (2) If the accused does so plead, the Court shall record the plea and proceed with the trial, and shall, before judgment is passed in the case find whether or not the accused has complied with the conditions of the pardon, and, if it is found that he has so complied, the Court shall, notwithstanding anything contained in this Code, pass judgment of acquittal.

78. Although the above provisions are contained in the Criminal Procedure Code but looking to their implications it cannot be said that they are simply procedural in nature. They relate to the privilege or right of the Ruler or the State and the rights of the heirs of the deceased or the victim which are of substantive nature.

79. An approver, on his own admission, is a criminal who implicates his S erstwhile associates in crime in order to save his own skin under a promise of e pardon that he discloses all that he knows against those with whom he associated ‑V criminally and this expectation would lead him to favour the prosecution. It has thus, been observed by Sir John Beaumount in Bhuboni Sahu v. The King PLD 1.949 FC 90 that "the danger of acting upon accomplice evidence is not merely that the accomplice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of prosecution".

80. The Council of Islamic Ideology in its 9th Report on Islamization of Laws relating to the Code of Criminal Procedure in September, 1983 (then headed by me) regarding sections 337, 338 and 339 recommended as under:‑

81. Dr. Abdul Malik Irfani has written in his book Islami Qanun‑e-Shahadat, Pub. 1989, Lahore that

82. Apart from the Qur'anic Injunctions, the rationale m Islam for discarding or not believing the evidence of an approver without corroboration is that an approver is likely to depose falsely in order to shift the blame. His evidence is open to suspicion and his credibility is doubtful. It has been held in Ramzan Ali v. The State P 'L D 1967 SC 545 that "where an accomplice is not made an approver but is examined as witness, though he could have been made an approver, his evidence shall be viewed with great suspicion".

83. It is to be noted that approver's evidence is not for the sake of Allah the Almighty as invariably ordained by Holy Qur'an. In fact an approver gives evidence in the hope of implied pardon with a motive to secure his liberty or to save his life. His evidence is likely to be biased in favour of prosecution thereby he loses the characteristic of being an independent `Adil witness, inasmuch as he sells his testimony for his personal gain and cannot be termed as an independent witness. In all probability, he is likely to minimize his role and exaggerate the role of other accused as he being a co‑accused is not legally discharged and continues to be an accused. There is every possibility in acting upon the testimony of an accomplice that in a desire to screen his partner in the crime he may substitute for him a completely innocent person. The possibility of his exonerating the actual culprit cannot be ruled out he may be the actual culprit and he may shift the blame to co‑accused. Furthermore, the provision of law may be misused inasmuch as it provides an opportunity to persons in authority to involve their opponents in criminal cases who may be implicated falsely on the testimony of an approver. The conviction on the uncorroborated testimony of an accomplice stands no merit in Islamic Law of Evidence. He being a Fasiq, his testimony is to be corroborated by other independent evidence, as already observed.

84. There are verses of the Holy Qur'an which make out the philosophy of crime and punishment in Islam that every person is responsible to his actions in this world and the world Hereafter, and everyone who earns sin and does wrong should be punished accordingly. (Whosoever worketh an evil, shall be requitted therewith). (Whosoever bringeth evil, then those who do ill‑works shall be rewarded only for that which they have been working). (Are ye being required aught save that which ye have been working). (Verily those who earn sin, anon will they be requited for that which they were wont to do). (That Ailah may requit each soul; according to that which he hath earned; verily Allh is swift in reckoning) (Whosoever will come with as vice shall not be requited save with the like thereof and they shall not be wronged) (Every soul draws the meed of its acts on none but itself: no bearer of burdens can bear the burden of another)

85. The doctrine of personal responsibility again. We are fully responsible for our acts ourselves: We cannot transfer the consequences to someone else. Nor can anyone vicariously atone for our sins. (Abdullah Yousaf Ali p. 339). In Surah XXIX: 13 we are told that the misleaders "will bear the burdens alongwith their own." Those are the burdens of misleading others with their falsehoods. So, both the sins are their own; vis, their original sin, and the sin of deluding the others. The responsibility of an approver who implicates falsely a co‑accused will, therefore, be doubled, both in this world and in the world Hereafter.

86. Tendering pardon to an accomplice and making him approver on the condition to disclose all the facts and parts played by his co‑accused as provided in sections 337, 338 and 339 of Criminal Procedure Code, according to Islamic Law, is not permissible in an offence liable to Hadd as Hadd cannot be waived, reduced, enhanced or altered in any case by anyone. But as far as tendering pardon to him in case of Ta'zir is concerned, it is permissible if it is based on "public interest" because Ta'zir can be waived by a ruler, legislature or Judge if he deems it necessary in the circumstances of a particular case. Allama Shami as quoted earlier has written in his book Radd al‑Muhtar that "the difference between Hadd and Ta'zir is that contrary to Ta'zir no recommendation can be accepted in Hadd that a ruler cannot waive it and it is (also) dropped by the delay (Shami, Ibn Abidin, Radd Al‑Muhtar, vol.III page 194), fie further writes, "so far as pardoning of an accomplice in matter of Ta'zir is concerned, it is only permissible when Ta'zir relates to the right of Allah and thus it will not be permissible if Ta'zir relates to the right of an individual unless the victim himself pardons him." (ibid, page 239) like the offence of murder and hurt.

87. Therefore, in case of an approver, his evidence against his co‑accused shall not be accepted unless it is corroborated with other evidence because in this case his evidence is not only unacceptable on the ground that he is accused but also on the ground that he gains benefit on his evidence which is not permissible in Islamic Law.

88. An offence of murder and hurt punishable with Qisas cannot be waived by anyone except the heirs of the victim in case of murder or the victim himself in case of hurt. It is noticeable that necessary amendment to this effect has been made in sections 337 and 338 of Cr.P.C., vide section 8 of the Criminal Law (Amendment) Ordinance, 1991, replaced subsequently by Criminal Law (Amendment) Act of 1991.

89. It now seems appropriate to quote from the observations of Shafi ur Rahman, J., in Federation of Pakistan v. Gul Hassan Khan P L D 1989 SC 633 appearing at page 684 which read as under:‑ Section 133 of the Evidence Act and Sections 337 to 339 of the Code of Criminal Procedure prescribe the conditions and the offences for which an offender can be made an approver and the extent and the manner in which his testimony may be utilized at the trial. The situations, the conditions, the offences and the requirements justifying reception of approver's testimony are all exceptional, bordering on necessity and demands of public policy. The various provisons of the Evidence Act with which its section 133 is to be read establish that whilst it is not illegal to act upon the uncorroborated evidence of an accomplice, it is a rule of prudence so unviersally followed as to amount almost to a rule of law that it is unsafe to act upon an evidence of an accomplice unless it is corroborated in material respects so as to implicate the accused. The evidence of approver where alongwith other evidence is found to be satisfactory, it should be sufficient to convict and sentence an offender under Ta'zir

90. As a step further to the above view, Mr. Justice Dr. Nasim Hasan Shah, the then Chairman, Shariat Appellate Bench of the Supreme Court in Federation of Pakistan v. Public‑at‑large PLD 1991 SC 459 at 462 observed that: In Islam a person can be forgiven for his failure to perform Huquq‑Ullah but with respect to Huquq‑ul‑Ibad a person must either perform it or obtain permission of the person whom he owes the rights so much so that even prayers can be interrupted for attending to Huquq‑ul‑Ibad.

91. In the light of the above discussion, sections 337 and 338 of Criminal Procedure Code 1898 are declared repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) to the extent that no tendering of pardon to an accomplice can be made in case of offence punishable with Hadd and Ta'zir, which relates to Haq al‑Abd the right of an individual.

92. To sum up, the provisions of Article 16 of the Oanun‑e‑Shahadat Order, 1984, are declared as repugnant to the Injunctions of Islam to the extent that an accomplice is not a competent witness in offences punishable with Qisas, and a conviction based on uncorroborated testimony of an accomplice even in the matter of Ta'zir will be illegal.

93. Sections 337 and 338 of Criminal Procedure Code, are declared repugnant to the Injunctions of Islam as laid down in the Holy Our'an and Sunnah of Holy Prophet (p.b.u.h.) to the extent that no tendering of pardon to an accomplice can be made in case of offence punishable with Hadd and the offence punishable with Ta'zir relating to Haq al-Abad the right of an individual.

94. This decision will take effect on 31st December, 1991 whereafter the said provisions of law will become void and shall be of no effect to the extent stated above. NOTE: ABDUL RAZZAQ A. THAHIM, J.‑‑--I have the benefit of perusing the well‑considered judgment in these Shariat Petitions written by learned Chief Justice, Mr. Justice Dr. Tanzil‑ur‑Rahman. I agree but I would like to make a few observations: The pre‑condition for Approver is that he should be accomplice but every accomplice is not approver. The words approver and accomplice are not defined in Pakistan Penal Code, Criminal Procedure Code or Qanun‑e‑Shahadat Order, 1984 nor such definition was given in repealed Evidence Act of 1872. I would therefore, examine the meaning of the words accomplice and approver. The Oxford Dictionary defines the Accomplice as `An Associate in crime or guilt, a partner in crime'. Chamber's Dictionary defines the words as `an associate in crime'. In Law of Evidence by Munir, page 1448 (Pakistan Edition), the word Accomplice is defined as `An Accomplice means a guilty associate or partner in crime, a person who is believed to have participated in the offence or who, in some way or other, is connected with the offence in question or who makes admissions of facts showing that he had concious hand in the offence. The definition of approver in Oxford Dictionary is `One who proves or offers to prove (another) quilty; hence, an informer. Now restricted to: One who confesses a felony and turns king's (queen's) or State's evidence. One who tests. One who confirms or commends. In World Book Dictionary, approver is defined as "A person who approves or commends. A person who proves or offers to prove:" Therefore, it is necessary that approver, in the first instance should be accomplice and after granting pardon under section 337, Cr.P.C, he becomes approver and is to be examined as witness under section 337(2), Cr.P.C, in Court.

2. Accomplice is to be tried alongwith co‑accused while approver is not to be tried jointly with accomplice but examined as witness and during investigation he is interrogated. Both can make confession. Statement as accused of accomplice is recorded under section 342, Cr.P.C. and under section 340(2), Cr.P.C. and can give evidence under section 340(2), Cr.P.C. on oath in disproof of the charges or allegations made against him and under Article 44 of Oanoon‑e‑Shahadat Order, 1984 as such all accused persons, including an accomplice are liable to cross- examination and under Article 43 of Qanoon‑e‑Shahadat Order, 1984 when more persons than one are being tried jointly for the same offence, and a confession is made by one of such persons and is proved, the Court may take into consideration such confession as circumstantial evidence against such other person. Therefore, confession of accomplice before taking into consideration must be proved for which I refer to Articles 37, 38 and 39 of Qanoon‑e‑Shahadat Order, 1984 that confession should be true, voluntary and without inducement threat or promise and not before Police Officer. Therefore, if confession of accomplice is not proved in light of above provisions of Oanun‑e‑Shahadat Order, 1984 it cannot be treated as circumstantial evidence even in cases of Ta'zir. The evidence of confession of co‑accused (Accomplice) cannot come under the category of direct evidence in light of Article 71 of Qanun‑e‑Shahadat Order, 1984. I also like to refer to illustration (b) of Article 129 of Qanun‑e‑Shahadat Order, 1984 whereby the evidence of accomplice is unworthy of credit unless he is corroborated in material particulars. In Islam the accomplice is not trustworthy and in this judgment it has unanimously been decided that evidence of such witness is not admissible in cases of Ta'zir and Qisas. In my humble view even in cases of Ta'zir the evidence of accomplice should be subjected to test of Tazkiyah‑al‑Shahood. The burden of proof under Article 117 lies on a person who desires any Court to give judgment. The proof of evidence is to be such which is admissible. The position of approver is different. He is to be examined as witness in‑‑the Court having taken cognizance of offence. His evidence is to be recorded as a witness when he is tendered pardon and we in this judgment decided that evidence of approver in cases of Hadd as well as Ta'zir is not admissible and is against the Injunctions of Islam as laid down in Holy Qur'an and Sunnah of Holy Prophet (p.b.u.h.) As such the evidence of approver and accomplice though both are accused in the crime is on different footing. In Qanoon‑e‑Shahadat Order, 1984 there is nothing about the approver being a competent witness. The evidence of accomplice is not to be recorded as a witness in the Court in accordance with Articles 133, 134 and 136 of Oanoon‑e‑Shahadat Order, 1984. He is accused and is jointly tried with others for the same offence and his evidence is admissible to the extent of Article 43 and Article 129 of Qanoon‑e‑Shahadat Order, 1984. The approver could be a competent witness because he a witness and examined under section 337(2), Cr.P.C. In my humble view an accomplice is not a competent witness under Article 16 of Qanoon‑e -Shahadat Order, 1984 as his examination as accused does not fulfil the requirements of witness. Therefore, accomplice without being examined as witness in accordance with provisions of Oanoon‑e‑Shahadat Order, 1984 as in the case of approver, can hardly be considered as competent witness. An approver is to be examined as a witness under section 337(2), Cr.P.C. which reads as under:‑ "337(2)(A).‑Every person accepting a tender under this section shall be examined as a witness in the subsequent trial if any." Approver is not be jointly tried if his evidence does not satisfy the requirement. I refer to section 339(1), Cr.P.C.

3. There is no provision in Criminal Procedure Code that accomplice being iointly tried to be examined as witness against co‑accused. When approver is granted pardon he is taken out of category of accused for the time being and to be examined as witness and could be a competent witness under Article 16 of Qanoon‑e‑Shahadat Order, 1984. The statement of witness is to be recorded under section 161, Cr.P.C. and he is supposed to be acquinted with the facts and circumstances of the case and such witness is bound to answer all questions other than the questions which expose him to a criminal' charge or to a penalty or forfeiture. Even confession before Police Officer is not admissible. Accomplice is accused and is required to be arrested under section 54, Cr.P.C. and taken to Magistrate under section 60, Cr.P.C. subject to provision of bail and case is to be sent to Magistrate under section 170, Cr.P.C. when evidence is sufficient alongwith a report under section 173, Cr.P.C. and congizance is taken under section 190, Cr.P.C. or under section 193, Cr.P.C. as the case may be or process is issued on direct complaint or joined as accused by Court when name is given in column No.2 or otherwise. When in case of approver the District Magistrate, a Sub‑Division Magistrate or a Magistrate of First Class may under section 337, Cr.P.C. at any stage of the investigation or enquiry or trial of offence tender a pardon such person after accepting pardon is to be termed as witness for all purposes subject to conditions laid down under section 338/339, Cr.P.C. The mode of recording evidence of witness has already been discussed by me. Therefore, accomplice could only be competent witness in terms of section 16 of Qanoon‑e‑Shahadat Order, 1984 when he is tendered pardon and examined as witness otherwise his evidence as accomplice is only admissible in law to the extent of Article 43 of Qanoon‑e‑Shahadat Order, 1984 when accomplice has given confession is subject to Article 129 of Qanoon‑e‑Shahadat Order, 1984. The admissibility of evidence of accomplice is independently given in Articles 43 and 129 of Qanoon‑e‑Shahadat Order, 1984 when there is no specific provision for consideration of evidence of approver.

4. In the leading judgment written by learned Chief Justice, Mr. Justice Dr.: Tanzil‑ur‑Rahman, and concurred by all of us it is decided that a conviction based on uncorroborated testimony of accomplice even in matter of Ta'zir will be illegal but in Ta'zir evidence of accomplice could be considered. In case of (Enforcement of Hudood) Ordinances, 1979 specially in cases of Ta'zir severe punishments are provided. Under section 10(2) of the Ordinance accused could be punished with R.I. for a term which may extend to ten years and 30 stripes, under section 10(3) of the Ordinance upto 25 (Twenty‑five) years with thirty stripes and under section 11 of the Ordinance, the punishment is imprisonment of life with whipping and fine, likewise in Prohibition Hadd Order, 1979, the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 severe punishments upto imprisonment of life are provided. Moreover, according to Hanafis and Malikis a Legislator/Qazi is authorised to give punishment in Ta'zir more than Hadd if he deems it necessary in the circumstances of a particular case. (Sharah Fath Al‑Qadir by Ibn‑Humam, Vol. V, pages 115 to 116). Therefore, while considering evidence of accomplice in cases of Ta'zir the conditions of competency and standard with regard to such person is the same and while participating in crime he is not `Adil' (Just) but is Fasiq I like to refer following Hadith:‑ "It has been related that a man came to Holy Prophet (P.B.U.H.) and stated that he has committed adultery with a woman and he named her. The Prophet (P.B.U.H.) called the woman and she denied to have committed adultery with that man. The Prophet (P.B.U.H.) imposed Hadd on the man and released the woman (Abdu Daud, vol.II, page 282, printed Beirut):" From this Hadith it is clear that Hadd was imposed on man on his own confession but woman was released and confession of Accomplice (co‑accused) was not found sufficient to impose Hadd on woman and even punishment for Ta'zir was not awarded. A number of Verses from Holy Qur'an have been referred in leading judgment with regard to the standard, quality, the competency of witness in Islam, therefore, the evidence of accomplice in cases of Ta'zir be also considered in light of Injunctions of Islam as laid down in Holy Qur'an and Hadith and Judge while considering evidence of accomplice in cases of Ta'zir should seek guidance from the Verses of Holy Quran and Hadith. The evidence of accomplice to the extent of circumstantial evidence corroborated in material particulars should also be subjected to verification for which I refer the following Verse of Holy Quran:‑ "O ye who believe! If a wicked person comes to you with any news, ascertain the truth, lest Ye harm people unwittingly, And afterwards become Full of repentance for What ye have done." (49:6) Moreover, the Holy Qur'an has conditioned Adalat (probity) for the witness. Qur'an says:‑ "And take for witness two persons from among you Endued with justice." (65:2) M.BA./625/FSC Orders accordingly.